Citation NR: 9606052
Decision Date: 03/08/96 Archive Date: 03/16/96
DOCKET NO. 94-01 122 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office (RO) in
Indianapolis, Indiana
THE ISSUE
Entitlement to service connection for the cause of the
veteranís death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Jeffrey M. Blankenship, Associate Counsel
REMAND
The veteran served on active duty from October 1941 until
October 1945.
This appeal arises from a May 1993 rating decision by the RO
in Indianapolis, Indiana which denied service connection for
the cause of the veteranís death.
The appellant and her representative contend that the
veteranís service-connected neuropathy caused diabetes and
asthma which contributed to the development of lung cancer
which caused his death. It is also contended that the
veteran suffered from a nervous condition as a result of
being a prisoner of war and that he was encouraged by
military personnel to smoke to relieve tension. It is
asserted that this ultimately resulted in the development of
lung cancer and death.
The Board notes that records for the veteranís terminal
hospitalization at the Department of Veterans Affairs (VA)
Medical Center in Hines, Illinois are not part of the claims
file. The most recent medical evidence of record is the
report of a special VA prisoner of war medical examination
performed in 1989. After reviewing the evidence of record,
the Board finds that further development is required prior to
a final determination. Therefore, the case is being REMANDED
to the RO for the following action:
1. The originating agency should request
legible copies of all of the veteranís
treatment records for the period of his
terminal hospitalization in January 1993
at the VA Medical Center in Hines,
Illinois. All documents obtained should
be associated with the veteranís claims
folder.
2. The originating agency should contact
the appellant and ask her to provide the
names and addresses of any physicians and
hospitals from which the veteran received
treatment subsequent to 1989 for any
medical conditions she alleges to have
contributed to his death, as well as any
supporting medical evidence which she
believes shows a causal relationship
between a service-connection disability
and the veteranís death. The originating
agency should obtain any required
authorizations to contact the physicians
and hospitals in order to obtain legible
copies of the veteranís treatment
records. All records obtained should be
associated with the veteranís claims
file.
3. After completion of the above, the
originating agency should review the
record and again adjudicate the claim of
service connection for the cause of the
veteranís death. General Counsel
Precedent Opinion 2-93 of January 1993
and the subsequent explanation
promulgated on June 23, 1993 should be
specifically noted and considered.
Following review, if any determination made remains
unfavorable to the appellant, a supplemental statement of the
case which sets forth the evidence received since the most
recent statement of the case should be issued to the
appellant and her representative. They should be given the
appropriate period of time in which to respond. Thereafter,
the case should be returned to the Board for further
consideration, if in order. The purposes of this REMAND are
to obtain additional medical information and to afford the
appellant due process. No action is required of the
appellant until she receives further notice.
ROBERT D. PHILIPP
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, ß 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1994).
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